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WildEarth Guardians v. Colorado Springs Utilities Board

United States District Court, D. Colorado

January 8, 2018




         This matter is before the Court on the parties' competing motions for summary judgment:

1. Defendants Colorado Springs Utilities Board, Colorado Springs Utilities, and the City of Colorado Springs' (collectively, “Defendants”) Motion for Summary Judgment (Doc. # 33), and
2. Plaintiff WildEarth Guardians' Motion for Partial Summary Judgment (Doc. # 34).

         For the reasons described below, the Court denies Defendants' Motion for Summary Judgment (Doc. # 33) and denies Plaintiff's Motion for Partial Summary Judgment (Doc. # 34).

         I. BACKGROUND

         Plaintiff WildEarth Guardians is a nonprofit, membership organization that seeks to reduce air pollution and its adverse effects in the western United States. (Doc. # 15 at 3-4.) Plaintiff has more than 200, 000 members from across the country, approximately 483 of whom live in Colorado Springs, Colorado. (Id. at 3.)

         Defendant City of Colorado Springs is a home-rule municipality incorporated in Colorado. (Doc. # 33 at 4.) Defendant Colorado Springs Utilities is an enterprise of the City and operates the Martin Drake Power Plant pursuant to the city charter and the state constitution. (Id.) Defendant Colorado Springs Utilities Board is composed of the city council's members and is the Board of Directors of Colorado Springs Utilities. (Id.)

         The Martin Drake Power Plant (the “Plant”) is located at 7000 Conejos Street, Colorado Springs. (Id. at 5.) Relevant here, the Plant has three coal-fired, electricity generator units: Units 5, 6, and 7, built in 1962, 1968, and 1974, respectively. (Id.) Unit 5 was permanently shut down in December 2016. (Id.) Units 6 and 7 remain in operation. (Id.)


         1. The Clean Air Act

         The Clean Air Act (the “Act” or the “CAA”) is a comprehensive federal scheme that regulates air emissions from stationary and mobile sources, with the aim of “protect[ing] and enhanc[ing] the quality of the Nation's air resources.” 42 U.S.C. § 7401(b)(1). The Act directs the Environmental Protection Agency (the “EPA”) to establish National Ambient Air Quality Standards, which define levels of air quality necessary to protect the public health. 42 U.S.C. § 7409; 40 C.F.R. § 50.2(b). States are required to develop State Implementation Plans (“SIPs”), applicable to certain industrial sources of air pollutants, in order to achieve these standards. 42 U.S.C. § 7410(a)(1). SIPs are subject to the EPA's approval. 42 U.S.C. § 7410(a)(3)(B).

         The Act provides for at least two enforcement mechanisms: first, the EPA may order compliance, issue an administrative penalty, or bring a civil action against the violator. 42 U.S.C. § 7413(a)(1); 40 C.F.R. § 52.23. Second, and most important to this matter, the Act contains a citizen suit provision. 42 U.S.C. § 7604. The citizen suit provision empowers “any person” to “commence a civil action on his own behalf” against “any person . . . who is alleged to have violated (if there is evidence that the alleged violation has been repeated) or to be in violation of . . . an emission standard or limitation.” 42 U.S.C. § 7604(a)(1). The district court in which a citizen suit is filed has jurisdiction to provide injunctive relief and “to apply any appropriate civil penalties.” 42 U.S.C. § 7604(a). Such civil penalties may be up to $37, 500 per day for each violation committed between January 12, 2009, and November 2, 2015, and up to $93, 750 per day for each violation committed after November 2, 2015. 40 C.F.R. § 19.4.

         Two titles of the Clean Air Act are relevant to the instant suit. First, Title IV, known as the Acid Rain Program, is intended to reduce the adverse effects of acid deposition by mandating reductions in emissions of sulfur dioxide and nitrogen oxides. 42 U.S.C. § 7651(b). Certain industrial sources, including power plants, are required to install and operate a continuous emission monitoring system (“CEMS”) at each source of such emissions to “provide on a continuous basis a permanent record of emissions and flow.” 42 U.S.C. § 7651k(a); 42 U.S.C. § 7651a(7); see generally 40 C.F.R. § 72. When required CEMS data is not available, “and the owner or operator cannot provide information, satisfactory to the [EPA], on emissions during that period, ” the EPA “shall deem the unit to be operating in an uncontrolled manner during the entire period for which the data was not available.” 42 U.S.C. § 7651k(d).

         Second, Title V of the Clean Air Act requires certain industrial sources to obtain and operate in compliance with an operating permit. 42 U.S.C. § 7661b(a). An operating permit must include “enforceable emission limitations and standards, a schedule of compliance, [and] a requirement that [a] permittee submit to the permitting authority . . . the results of any required monitoring.” 42 U.S.C. § 7661c(a); see generally 40 C.F.R. § 70.

         One such form of required monitoring is opacity[1] monitoring. 40 C.F.R. § 75.10(a)(4). Power plants and other certain industrial sources must maintain a continuous opacity monitoring system (“COMS”) with an automated data acquisition system “for measuring and recording the opacity of emissions (in percent opacity) discharged to the atmosphere” every six minutes. Id.; 40 C.F.R. § 75.10(d)(2). A source's COMS must be in operation and measuring opacity “at all times that the effective unit combusts any fuel[, ] except . . . during periods of calibration, quality assurance, or preventative maintenance . . ., periods of repair, periods of backups of data . . ., or recertification, ” and at all times “following combustion when fans are still operating.” 40 C.F.R. § 75.10(d) (emphasis added).

         Every state is charged with administering its own Title V operating permit program, subject to the requirements of Title V and to the approval of the EPA. 40 C.F.R. § 70.1(a). The Colorado Department of Public Health and Environment's (“CDPHE”) operating permit program was approved by the EPA on October 16, 2000. 40 C.F.R. § 70, App'x A; see Colo. Rev. Stat. § 25-7-114.3. Pursuant to Colorado regulations, a stationary industrial source may not “allow or cause the emission into the atmosphere of any air pollutant that in excess of 20% opacity” in any six-minute period, except when the source is undergoing “process modification, or adjustment or occasional cleaning of control equipment.” 5 C.C.R. §§ 1001-3, II.A.1-4.

         2. The Plant's Operating Permit

         CDPHE issued the Plant its initial Title V operating permit on November 1, 2002, and a revised Title V operating permit on April 13, 2004. See (Doc. # 33-1 at 3-81.) The Plant's operating permit incorporates COMS requirements set forth in the federal regulations, see 40 C.F.R. § 75, and in Colorado's regulations, see 5 C.C.R. §§ 1001-3, II.A.1-4. (Doc. # 33-1 at 31, 33-34.)


         Plaintiff filed this action against Defendants on February 9, 2017. (Doc. # 1.) In its Amended Complaint, Plaintiff alleges a single claim for relief, alleging that the Plant violated continuous opacity monitoring requirements, in breach of Titles IV and V of the Act, federal regulations, Colorado's operating permit plan and regulations, and the Plant's Title IV operating permit. (Doc. # 15 at 15.) Specifically, Plaintiff asserts that there was at least 18, 930 minutes of “COMS downtime” between April 11, 2011, and December 13, 2015, during which time Defendants failed to monitor opacity of emissions at the Plant. (Id.) Plaintiff further alleges that these unmonitored minutes “[did] not fall within one of the limited downtime exceptions” identified at 40 C.F.R. § 75.10(d) and were thus “unexcused.” (Id.) Because opacity is monitored and reported in six-minute intervals, Plaintiff contends that the 18, 930 minutes of unmonitored “downtime” represents 3, 155 violations of the Clean Air Act and its implementing regulations. (Id.) Plaintiff seeks declaratory relief; an order to Defendants, mandating compliance with COMS requirements; civil penalties against Defendants; and an award of reasonable costs and attorneys' fees. (Id. at 16.) Defendants timely answered on May 23, 2017. (Doc. # 19.)

         Defendants moved for summary judgment on September 26, 2017, and argue that Plaintiff lacks standing and that its claim therefore must be dismissed for lack of jurisdiction. (Doc. # 33.) Plaintiff filed a response brief on October 17, 2017 (Doc. # 36), to which Defendants replied on October 31, 2017 (Doc. # 38).

         Plaintiff moved for partial summary judgment on September 26, 2017, seeking summary judgment that Defendants violated the Clean Air Act on 91 occasions (totaling 1, 848 six-minute increments) because none of the statutory exceptions to COMS requirements applied to those 91 instances of “downtime”.[2] (Doc. # 34.) Defendants ...

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